U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatriz L,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120182045 Agency No. 200P-0691-2018101735 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 24, 2018, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as a Medical Support Assistant (MSA), GS-6, at the Agency's West Los Angeles Healthcare Center in Los Angeles, California. On February 23, 2018, Complainant filed a formal discrimination complaint against the Agency. Complainant alleged that the Agency had subjected her to discrimination when: 1. From March 17, 2017 to January 25, 2018, Complainant was subjected to harassment, to include but not limited to the following: She was accused of being gone for an hour and taking an hour lunch break by her supervisor; she was falsely accused of pushing a co-worker that resulted in issuing her a proposed removal; her supervisor embarrassed her in front of a lot of people with his conduct and tone when discussing overtime work; she was issued an order to not interact with a co-worker; co-workers do not want to talk or interact with her because she is labeled a bad employee; her supervisor, in an irate tone, while yelling, screaming and waving his hands, asked her where she had been when returning from her lunch break and accused her of taking an extended break from 1:25 pm to 2:10 pm; management attempted to mark her AWOL for December 13, 2017; she was offered a MSA position in the Eye Clinic where she could be reassigned as she requested, but she would have to take a demotion from a GS-6 to GS-4/5 pay grade; during a meeting an Agency official stated she would only be allowed union representation if it were available during the scheduled meeting; 2. On an unspecified date, her request for leave donation was disapproved; 3. From March 19, 2017 to March 31, 2017, Complainant's timecard was showing she was at work although she was on family leave through April 1, 2017, and she was paid; 4. On May 25, 2017 and July 27, 2017, Complainant reported the erroneous attendance records to the Assistant Chief and nothing was done; 5. On November 15, 2017, she was issued a proposed removal that was mitigated to a reprimand on November 30, 2017; 6. On December 21, 2017, she was marked AWOL from 8:00 am to 8:30 am; 7. On December 22, 2017, the other employees leave requests were approved leaving her alone in the clinic without breaks; 8. On January 4, 2018 and January 5, 2018, she was charged AWOL from 12:15 pm to 1:00 pm despite requesting approved leave; 9. On January 4, 2018, she was denied overtime due to an AWOL status on her timecard; 10. On January 12, 2018, she was asked to go to the urology clinic and was given a scheduled lunch break. Complainant was the only employee who was given an assigned break time; 11. On January 16, 2018, Complainant requested a copy of Friday meeting minutes regarding policies and procedures; to date, she has not received a response to her request; 12. On January 17, 2018, she requested a copy of all ROCs (Report of Contacts) that involved her; to date, she has not received a response to her request; and 13. On January 25, 2018, she requested a copy of her 2017 Performance Appraisal; to date, she has not received a response to her request. On April 24, 2018, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency concluded that Complainant's claims were defective because Complainant had alleged "reprisal discrimination for union activities" as opposed to reprisal for EEO activity. The instant appeal followed. On appeal and through her representative, Complainant contended that the Agency had mischaracterized the nature of her claim. According to Complainant, her claim also included harassment based on race and color. The representative explained that the EEO Counselor, not Complainant, had provided "union activities" as a basis. ANALYSIS AND FINDINGS Upon review, the Commission finds that the Agency improperly dismissed Complainant's complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). In accordance with Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970), EEOC gives complainants liberal latitude to clarify the bases for their discrimination allegations. In Sanchez, the court explained different reasons for a complainant's failure to identify discriminatory motivation during the complaint process. For example, a complainant may misunderstand the concept of discriminatory bases. It is also possible that a complainant may lack the aptitude to complete the forms properly. Applying Sanchez to the present matter, we find that Complainant failed to identify valid bases because she could not distinguish between discriminatory motives and discriminatory acts and was therefore unable to properly identify a proper basis for her claims. On her formal complaint (VA Form 4939), Complainant stated that "harassment" was Agency management's discriminatory motive. On appeal, Complainant and her representative have clarified that her claim is one of harassment based on reprisal, race and color. Accordingly, we find that Complainant has indeed stated an actionable claim. See Castillo v. U.S. Postal Serv., EEOC Appeal No. 01956860 (Mar. 22, 1996) (wherein that complainant had written "harassment" to describe the basis for her formal complaint but later articulated race and sex as bases for the harassment during her appeal.) Consistently, Complainant alleged harassment throughout the complaint process. Ultimately, she has identified race, color and reprisal as valid bases on her appeal CONCLUSION Therefore, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint, herein defined as claims of harassment based on reprisal, race or color, to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a Final Agency Decision, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to Complainant and her representative. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations August 14, 2018 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120182045 6 0120182045